Shoe on the other foot not comfortable

May 22, 2003

Steve Chapman

Back in 1993, a Democrat was in the White House, Democrats controlled both houses of Congress, and liberal thinkers had an idea to make it easier to get what they wanted. They proposed to abolish the Senate filibuster — which allows a minority of senators to block action by the whole body. One prominent Democratic Washington lawyer, Lloyd Cutler, went so far as to argue that the rule permitting filibusters was flatly unconstitutional.
The idea went nowhere, Democrats managed to get their way much of the time over the next few years anyway, and the republic survived. But a decade later, something odd has happened. This time a Republican is in the White House, Republicans control both houses of Congress, and it’s not liberals who say the filibuster is unconstitutional. It’s conservatives.
The filibuster, as you may recall from high school civics, allows members to extend debate indefinitely to prevent the Senate from voting on something. The only way the Senate can leap the hurdle is for 60 members to vote to end debate. Like many features of our system, it’s a classic mechanism for protecting the minority against the majority.
You can see why liberals would regard the filibuster as an obstacle to their dreams of an ever-expanding federal government, ready for swift action whenever a need arises. They’re generally not the ones who get nervous anytime the legislature is in session. They typically don’t want to make it hard for the government to act; they want to make it easy. For that reason, they’ve always chafed at many features of our system that delay, inhibit and even prevent lawmakers from translating current popular sentiment into concrete measures.
But conservatives are supposed to have great respect for tradition. If the filibuster has nothing else on its side, it can boast nearly 200 years of tradition. Not only that, but the Constitution doesn’t afford much room for argument about whether the Senate is entitled to preserve the filibuster. Article I says, “Each house may determine the rules of its own proceedings.” You will ransack the document in vain for any limit on that authority.
Republicans are taking a fresh look at the matter because two of George W. Bush’s judicial nominees have been denied a vote by Democrats using the filibuster. The president himself said that was a “disgrace,” even though the Senate has approved 125 of his choices. Senate Republican leader Bill Frist of Tennessee has offered a new rule. Each time the Senate votes on ending debate, the number of votes needed for approval would decline by one, until it reaches 51.
Frist’s proposal has no chance, though, because a rules change demands a two-thirds vote by senators. Critics of the filibuster say that violates the Constitution by creating a super-majority requirement. “The Constitution was originally written to empower Congress to make most decisions by majority rule,” writes Northwestern University law professor Steven Calabresi. The only permissible exceptions are those it spells out, like the two-thirds needed to override a presidential veto.
Conservatives are usually extremely skeptical when someone discovers a constitutional violation that had somehow been overlooked since the founding of the republic. Opponents of the filibuster also have to find a way around that blindingly clear language giving the Senate the sole power over its own operations.
To overcome a transient political inconvenience, Republicans propose to jettison a Senate practice that has grown up and evolved over the last 214 years, replacing it with a simple policy that the majority must always have its way. There are lots of terms you could use to describe that effort. But conservative isn’t one of them.